1.Robert H. Gordon — Direct (Part 1)
588 lines(Reconvened at 8:32 a.m.)
THE COURT: Good morning, counsel. Uh, this is State of Wisconsin vs. Brendan R. Dassey, 06 CF 88. Appearances, please.
MR. KRATZ: The State continues in its appearance by Special Prosecutors Ken Kratz, Tom Fallon and Norm Gahn.
MR. FREMGEN: Attorney Mark Fremgen, Attorney Ray Edelstein appear with Brendan Dassey in person.
THE COURT: Are you set to proceed?
MR. KRATZ: Yes, Judge.
THE COURT: Do so.
MR. FREMGEN: Call Dr. Robert Gordon.
DR. ROBERT GORDON, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
ROBERT H. GORDON: Could I get prepared first, please?
COURT CLERK: Sure.
ROBERT H. GORDON: My name is Robert H. Gordon, G-o-r-d-o-n.
DIRECT EXAMINATION BY ATTORNEY FREMGEN:
MR. FREMGEN: Doctor, do you -- can you describe what your, uh, educational background is?
ROBERT H. GORDON: Sure. I have a Bachelor's Degree from Purdue University. That was obtained in 1972.
I received my Doctorate in clinical psychology from Washington University in 1976.
I completed a one-year internship at the University of Tennessee, School for Health Sciences.
And I subsequently audited two classes in the early 80's at the University of Wisconsin Law School.
I've, uh, attended a variety of workshops in the meantime and, likewise, have given oral presentations, seminars and training than I've gone to workshops.
MR. FREMGEN: Where do you -- where are you currently employed?
ROBERT H. GORDON: Until, uh, Friday, I'm currently employed with Forensic Psych Associates. Its, uh, office -- main office is in Janesville. Uh, other offices are located in Chicago, Milwaukee and Rockford.
MR. FREMGEN: And you said until Friday. Are you changing positions as of Friday?
ROBERT H. GORDON: I am.
MR. FREMGEN: And where are you -- where will you be working at that point?
ROBERT H. GORDON: As of, uh, Tuesday, May 1, I will be the Director of Forensic Evaluation Services at St. Louis Behavioral Medicine Institute Health -- St. Louis Behavioral Health Institute, affiliated with St. Louis University.
MR. FREMGEN: What other work or, uh, employment history do you have involved with clinical or forensic psychology?
ROBERT H. GORDON: Well, I began my career, primarily, as a clinical psychologist. I worked for the first two years out of -- after I completed my graduate degree, at the Janesville Counseling Center down -- that's what is currently known as -- it's a part of the Rock County Health Care Center System. Uh, county system. And I was a Clinical supervisor there.
And, then, from 1978 until present, I have been in private practice, running my own office, employing some staff, and doing counseling, consulting to different agencies, probation and parole, counseling -- other counseling services, uh, Department of Human Services, etc.
And, then, over the past, uh, five years, I've, uh, exclusively, uh, limited my practice to forensic work, except I do a few free counseling sessions and run a free group at a church, and I -- I will continue that on a one-time per week -- or one-time per month basis, uh, by phone, once I gets to St. Louis, but with everyone else in a church -- in a group.
MR. FREMGEN: Are you a member of any professional organizations or associations?
ROBERT H. GORDON: I am.
MR. FREMGEN: Can you describe those organizations related to your field of expertise?
ROBERT H. GORDON: Well, they're listed on my CV, and they include the American Psychological Association, of which I'm a member. I was designated, uh, oh, maybe 20 years ago, as being a Fellow of the Wisconsin Psychological Association.
I'm also a member of the Division of Wisconsin Psychological Association called the Society of Clinical and Consulting Psychologists. Then, there's the Division of the American Psychological Association, of which I'm a member of the American Psychology Law Society.
I'm also, um, a member of three smaller organizations. The Association for the Treatment of Sex Abusers, the Illinois Sex Offender Management Board, and the Milwaukee Area Psychological Association.
I'm sorry for reading, but I want to make sure it's accurate.
MR. FREMGEN: You mentioned that this is on your CV?
ROBERT H. GORDON: That's correct.
MR. FREMGEN: And CV, you mean by that, Curriculum Vitae?
ROBERT H. GORDON: Precisely.
MR. FREMGEN: Another word for resumé?
ROBERT H. GORDON: Yes, sir.
(Exhibit No. 226 marked for identification.)
MR. FREMGEN: I'm going to show you what's been marked as Exhibit 226. Is that the Curriculum Vitae you're referencing?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Now, you had mentioned -- or I think you were going into discussing psych -- certain boards, and I think you mentioned, "up until recently." Can you describe, first of all, what boards, and what you mean by "up until recently?"
ROBERT H. GORDON: Yes. I was on three boards and resigned due to my changing position. The, uh, boards include, uh, in .the past, being on the advisory committee to the University Wisconsin-Whitewater, uh, Chancellor, the Dean of, uh, Arts and Sciences.
I, also, was on the Circle of Friends for the court appointed special advocate in Rock County. Um, I also, in the past, was a -- on the board of directors for the Society of Clinical and Consulting Psychologists that I referred to already. There may have been one or two others. I didn't check my notes. I'm sure I omitted one.
MR. FREMGEN: Now, you've mentioned clinical psychology along with the term "forensic psychology." Can you describe what the difference is between the two?
ROBERT H. GORDON: Sure. There are many components of Psychology, whether it's clinical psychology, um, experimental psychology, industrial psychology. There are different specific aspects of psychology.
But when you apply that body of knowledge to matters that come before the court, to assist the court or a jury in making decisions, that's when it becomes forensic in nature. So that you can have a forensic social psychologist or forensic engineer.
Forensic means, a body of knowledge that qualifies you by the court to be an expert, to offer any information to the court and to the jurors.
MR. FREMGEN: How long have you been involved in forensic psychology, for instance?
ROBERT H. GORDON: I've been involved in forensic psychology since 1978. But it's been on a increasing basis since that time. I began by doing mental commitment evaluations and guardianship evaluations.
MR. FREMGEN: Have you ever testified in court before?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Do you -- can you recall how many times you've been in court as a -- testifying in this type of capacity?
ROBERT H. GORDON: Uh, Mr. Fremgen, I -- I came to a better estimate of that, and it's an estimate, last night, uh, as I calculated it, and that would be roughly 2,500. But that number is inflated, because many of those have been done at the request of the Department of Probation and Parole, where I consult or I consulted up until this past Thursday.
And, also, they contain -- those numbers are -- are higher because the significant portion also are mental commitment evaluations and guardianship evaluations.
MR. FREMGEN: So it's not necessarily jury trials, for instance?
ROBERT H. GORDON: No, sir. Uh, the majority are not jury trials. The majority are before the judge.
MR. FREMGEN: So, just a judge, is what you're saying?
ROBERT H. GORDON: I wouldn't say, just the judge, I'd say before the judge.
MR. FREMGEN: Before the court.
ROBERT H. GORDON: Yes.
MR. FREMGEN: Have you authored or co-authored any publications, or any articles, or any books?
ROBERT H. GORDON: Yes.
MR. FREMGEN: You, again, briefly listed, described the topic of the -- the, uh, publication?
ROBERT H. GORDON: Could you -- could I --
MR. FREMGEN: Briefly list, describe what that authored publication is?
ROBERT H. GORDON: Uh, I co-authored one book called, Substance Abuse, Homicide and Violent Behavior. I have also, uh, self -- self-published a facilitator's guide and a learner's workbook regarding treatment of sex offenders.
Then, I have a number of articles that have been published. Some have been published in what's called peer reviewed journals where you submit it to psychologists and other mental health professionals. And they decide whether it's worthy of publication.
In other occasions, my, uh -- some of the 12 articles that I've written have been in more like trade journals, like put out by the different -- like a bar association or psychology association. And those would not be called peer reviews. Those are re -- reviewed by editors of the journals or -- or trade publications.
MR. FREMGEN: Have any of those peer review publications involved aspects of forensic psychology?
ROBERT H. GORDON: One did, indirectly.
MR. FREMGEN: And what was that?
ROBERT H. GORDON: Well, that was my dissertation. And I didn't foresee it as being forensically-related, but it is. And it's entitled, "Diagnostic Compliance in Rorschach Interpretation as a Function of Group Member Status." That was my dissertation to get my Ph.D. And, also, I summarized it better than I did the title, uh, to be published in a peer-related article.
MR. FREMGEN: How often do you spend time familiarizing yourself with the current research in the field of forensic psychology?
ROBERT H. GORDON: Well, my wife thinks that I do that quite often, and that she's right. Um, I receive journals, I review journals. I, uh, go to -- go to particular workshops and seminars. And I also, thanks to the modern-day technology, um, probably spend an average of one to two hours in the evening, four days a week on the average, uh, seeing what current articles are published in a variety of areas regarding cases in -- forensic cases in general or cases that I'm consulting on.
MR. FREMGEN: Why is it important to continue to follow the research or follow, um, trends in forensic psychology?
ROBERT H. GORDON: Well, it's -- it's two reasons. One is, ethically required by the ethic code -- ethical codes that I subscribe to, or ascribe to, simply by my participation in these organizations I've mentioned.
The other reason is more important to me. It's personal. When I am offering information that may be helpful to judges or juries that in -- affect, life, liberty, finances, um, people's rights, then, uh, that's something that I personally take very seriously.
MR. FREMGEN: Have you ever presented or trained -- you mentioned you've gone to training sessions. Have you ever trained others in your field of psychology?
ROBERT H. GORDON: I have.
MR. FREMGEN: Can you briefly describe those presentations or trainings?
ROBERT H. GORDON: Well, they've been on a variety of forensic topics. I could enumerate those, if you like. But I can summarize by saying that I counted them up, and there are 100 or -- give or take a couple hundred presentations that I've provided to either attorneys, and they've been continuing legal education approved for all, and I have also presented to probation officers, social workers, federal probation chiefs regarding a variety of forensic matters.
Uh, some of them have been small. Only 10, 15, 20 individuals at, uh, a bar association. Others have been large. When it's been, for example, uh -- most recently, I testified -- not testified, but spoke at, regarding sex off -- sexual assault homicide in capital cases, in, uh -- in Texas at a -- a national conference. So, it -- it runs the gamut.
MR. FREMGEN: Previously, you indicated you've testified over, approximately, 2500 times in various, uh, types of proceedings. When you've testified in the past, do you testify solely for one side or the other?
ROBERT H. GORDON: No, sir.
MR. FREMGEN: Do you have any percentage as to what -- how -- how often you're called by one side or other?
ROBERT H. GORDON: Pardon me?
MR. FREMGEN: Do you have any percentage, that you're aware of, as -- as far as how often you're called by, let's say, for instance, the defense?
ROBERT H. GORDON: That's a different question than you asked before. By the defense, probably 60 percent. By the prosecution, probably 40 percent. But that's still the minority of who request my services.
MR. FREMGEN: Now, let me just, uh, skip ahead. Are you familiar with the term, quote, false confession, unquote?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And how is this term fam -- familiar to you as a forensic psychologist?
ROBERT H. GORDON: Well, it's familiar to me by cases I've been involved in, by my understanding of the literature and the tests available to evaluate them. And it's related to evaluating whether, um, or -- it's, uh, related to helping address, uh, false confessions, and -- which are admitting to wrongdoing when it didn't exist, uh, or overstating one's involvement in a crime and --
MR. FREMGEN: Is there another term that's used in this field?
ROBERT H. GORDON: Well, beginning in 1908, there was Miinsterberg, who wrote his first book on causes of false confession at the turn of the century.
Also, not this century, Binet, uh, showed pictures, and then saw if there was a -- a change in responses when the pictures were shown again.
And, most recently, in the -- in the 1980's, uh, Gisli, and I've been -- I've been told it's Gudjonsson, uh, developed what's called "interrogative suggestibility." And that was in the 80's. And he has done extensive research, uh, and come up with a Gudjonsson Suggestibility Scales to assess for two aspects of, uh, interrogative suggestibility.
MR. FREMGEN: Is Gudjonsson the foremost expert in this field?
ROBERT H. GORDON: He's certainly one of the leading experts. Uh, he was originally a -- a detective in Iceland. He went over to London. He became a psychologist. He was asked to consult about confessions. He now is the Professor of Forensic Psychology at the Institute of Psychology at Kings College in London.
He's written a -- a -- I didn't bring it with me, a thick handbook, which, not to be blasphemous, but would be the bible of, uh, the psychology of false confessions and psychology of false confessions. I don't have the exact title with me, but, uh, it's one that's heavily relied upon.
MR. FREMGEN: Is the Gudjonsson Scale of Suggestibility, what you've just recently described, the only tool that a forensic psychologist has available to him in determining whether a person has the psychiatric or psychological characteristics that may cause him to be vulnerable to give any false confession?
MR. FREMGEN: What -- what other tools do you believe, as a forensic psychologist, are important to consider in making a determination of suggestibility?
ROBERT H. GORDON: Focusing on tools as your --
MR. KRATZ: Judge, I -- I'm sorry. If I may interpose an objection? Perhaps Mr. Fremgen is doing this intentionally, but he's interposing the terms "suggestibility" and "false confession." If we're talking about false confession, I'd ask that he ask that question. If he's talking about suggestibility, I'd ask that he phrase it in those terms.
THE COURT: So, you're objecting to the form of the question as a compound question?
MR. KRATZ: I am, Judge. They are two, I think, distinct, uh, concepts, and I'd ask that those be, uh, referenced to any specific questions. Thank you.
THE COURT: Mr. Fremgen?
MR. FREMGEN: I'll change -- I'll --
THE COURT: Okay.
MR. FREMGEN: -- rephrase.
MR. FREMGEN: (By Attorney Fremgen) Can you describe the other tools that you would consider important in making a determination whether a person, uh, has those personality or psychological characteristics that make them vulnerable to suggestion?
ROBERT H. GORDON: Yes. Uh, generally speaking, there are tests regarding intellectual functioning, IQ, uh, they could be memory, they could be tests associated with assessing personality traits, characteristics associated with the likelihood of being suggestible. Uh, those are the main ones.
MR. FREMGEN: Now, are these --
ROBERT H. GORDON: The main categories.
MR. FREMGEN: I'm sorry. Are these tests developed solely to determine whether a person may be suggestible?
ROBERT H. GORDON: The, uh, only one that was solely developed that personal is the Gudjonsson Suggestibility Scales.
MR. FREMGEN: So the other tests that you were just talking about in a -- more of a generic form, are they used in other, um, evaluations in forensic psychology, for instance?
ROBERT H. GORDON: In forensic psychology and non-forensic psychology, true.
MR. FREMGEN: Why is it that, uh, these tests that have, potentially, nothing to do with suggestibility, are important tools to consider as a forensic psychologist in making that determination?
ROBERT H. GORDON: Well, there are different psychological characteristics that an individual might exhibit or might possess that, in turn, would increase or decrease the likelihood that they would be suggestible. And those include, intellectual functioning, learning problems, memory problems, personality characteristics. Whether a person, for example, is passive, withdrawn, socially introverted, quiet, anxious, wanting to be ple -- desiring to Please, uh, being in terms of social desirability, um -- I must be missing something, but I don't recall right now.
MR. FREMGEN: Now -- and -- and, again, is this something that, for instance, Gudjonsson recommends forensic psychologists to consider in addition to his suggestibility scale?
ROBERT H. GORDON: Absolutely.
MR. FREMGEN: Have you performed these tests on actual subjects to determine whether a person may be susceptible or vulnerable to suggestion before?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And -- and do you -- can you tell us how often or how many times, that is, that you performed these tests to assist you in making determinations of whether a person is vulnerable to suggestion?
ROBERT H. GORDON: I should keep better records, but the number is -- compared to the 2,500, is definitely lower. It's more like 5 to 10.
MR. FREMGEN: And have you ever testified in a court, such as this, in that regard?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And -- and how often have you done that?
ROBERT H. GORDON: Three times. Well, three that I can recall.
MR. KRATZ: Judge, I -- I'm sorry. Again, I interpose an objection as to vague. "Ina court, such as this." Are we talking about a jury trial? Or are we talking about just before a judge?
THE COURT: That's fair.
MR. KRATZ: I ask that -- that be --
THE COURT: Sure. It's a fair objection. It's sustained. Why don't your rephrase the question, Counsel?
MR. FREMGEN: (By Attorney Fremgen) How often did you testify before a judge in regards to this type of topic?
ROBERT H. GORDON: Before a judge, that I can recall of those five to ten times, uh twice.
MR. FREMGEN: How often have you testified --
ROBERT H. GORDON: Three -- three times. I'm sorry.
MR. FREMGEN: How often have you testified in this same regard in front of a jury?
ROBERT H. GORDON: This is the first time.
MR. FREMGEN: Now, you had a -- a large number of cases that you've test -- you indicated you testified before a court in the past?
ROBERT H. GORDON: That's true.
MR. FREMGEN: And this seems like a very small fraction; is that correct?
ROBERT H. GORDON: That's true.
MR. FREMGEN: Why is it that you have such a smaller fraction in this type of, uh, evaluation, or forensic psychology versus the other types that you testified about?
ROBERT H. GORDON: Well, it's just an expansion -- a gradual expansion of my practice. I mean, when I first started doing this, as I indicated, I only did mental commitment evaluations and guardianship. And, then, I began to do maybe a -- a few custody evaluations, and, uh, fitness to stand trial or, uh, proceedings regarding disposition of cases regarding children or -- or sentencing.
And, then, it just -- with the seminars I -- I attended, with presentations I've given that required me to learn the material to present in a meaningful way to attorneys, then I gradually expanded my areas of expertise. Not -- not -- not to the point -- I'm not a neuropsychologist, for example, so I -- there's no way I'm going to expand to the point of talking about traumatic brain injury from a car accident, and get up here and try to help the Court. I mean, there's certain limitations.
MR. FREMGEN: When you began your practice in, um, psychology, uh, was there sex offender groups at that time that you were aware?
ROBERT H. GORDON: Not that I was aware of.
MR. FREMGEN: And, now, you testified earlier that one, uh, function of your, um, employment is you are a facilitator in sex offender groups?
ROBERT H. GORDON: I'm proud to say that I get to continue that by web cam on a weekly basis for the three groups I already run once I get to St. Louis. So, yes.
MR. FREMGEN: So that's something that's kind of progressed throughout your career?
ROBERT H. GORDON: Even that has progressed to web cam. That's true.
MR. FREMGEN: But the sex offender type of -- of involvement in your field?
ROBERT H. GORDON: I started off with six individuals that were in a group, and, now, I've seen three thousand.
MR. FREMGEN: Your -- would it be fair to state that your involvement in suggestibility evaluations is similar? That is, it's begin -- it's just beginning, and it's beginning to progress?
ROBERT H. GORDON: It's just beginning. Beginning to progress. But whether expands to the degree -- I doubt it will expand to the degree that my sex offender work has, because I'm 56 and don't have that many years to have it expand. You know.
MR. FREMGEN: Specifically, turning to Brendan Dassey, you're familiar with Brendan; correct?
ROBERT H. GORDON: I am.
MR. FREMGEN: And how did you become familiar, first, with Brendan Dassey?
ROBERT H. GORDON: You contacted my office.
MR. FREMGEN: Did you have an opportunity to review collateral materials in preparation for meeting with Brendan?
ROBERT H. GORDON: I did.
MR. FREMGEN: Can you describe what those materials were?
ROBERT H. GORDON: Uh, it -- it was, uh, sheriff, uh, transcript regarding his, uh, being interrogated. And I also viewed the actual video of -- of those -- some individuals call them interviews when they're victims, interrogations when they're suspects. Uh, I viewed that as well. And I, subsequently, reviewed, after my report was prepared, uh, school records regarding, uh, Mr. Dassey, Brendan, that date back at least to fourth grade. If not, before.
MR. KRATZ: Judge, if I may, and I don't mean to -- I don't mean to interpose an objection, but when he indicates reviewing videotapes, if he could explain the dates of those interview videotapes so that we know what interview he was talking about, that might be helpful for us as well.
THE COURT: That's fair. If you're going to be alluding to materials that are dated, Dr. Gordon, why don't you, as part of your answer, reference the date.
ROBERT H. GORDON: Yes, sir.
THE COURT: Okay.
ROBERT H. GORDON: Do you want me to do that now?
THE COURT: Go ahead.
ROBERT H. GORDON: The, uh, written narrative was based on inter -- an interview that took place on February 27, 2006. I may have reviewed another one as well. I don't recall. But I know one was based on an interview of -- or interrogation of February 27, 2006 -- 2006.
MR. FREMGEN: Did you have an opportunity to review a DVD of a videotaped statement on March 1, 2006?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And you indicated you'd also reviewed a number of school records as well; correct?
ROBERT H. GORDON: I sure did.
MR. FREMGEN: And at one point were you provided with tran -- or a -- copies of a CD involving phone calls from the jail?
ROBERT H. GORDON: I was.
MR. FREMGEN: Before you conducted any -- well, let me ask you this: Did you conduct any tests on Brendan Dassey?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Now, before you conducted those tests, did you also perform a mental status examination of Brendan Dassey?
ROBERT H. GORDON: I did.
MR. FREMGEN: Why is it important to do a mental status evaluation of a, uh, individual?
ROBERT H. GORDON: Well, it's important because it's -- it's important because it's advisable to obtain a variety of sources of clinical information, both collateral, as well as testing, as well as interview, in order to conduct a comprehensive evaluation to com -- in order to come up with the most reliable and valid conclusion as possible.
MR. FREMGEN: What observations, if any, did you have following your mental status evaluation of Brendan Dassey?
ROBERT H. GORDON: Uh, Brendan Dassey's thought process was slow. He was -- there was, even in the interview, indication of mild to moderate mental impairment. He was slow to respond. His eye contact was poor. His affect was bland. To put that -- his affect was blah. To put it unprofessionally.
He, uh -- there was -- a mental status evaluation also often includes a -- a history. A social history. And he has a history of -- of, uh, learning problems, as I noted, per his report, confirmed by collateral data.
He also talked to me about feeling very anxious and a loner in school, having few friends, and feeling anxious, for example, when getting up to talk before a class, uh, he felt very socially phobic and, uh, uncomfortable, and alienated from friends.
MR. FREMGEN: Is the information that you, um, obtained through the mental status examination important, uh, to consider, as a forensic psychologist, prior to or during the time that you perform additional tests?
ROBERT H. GORDON: It's important to consider it prior to or during the administration of additional tests, because I have, at my office, for example, 150 tests, and you want to tailor-make the evaluation, to use tests that most directly address a given case.
I mean, there's some tests that I would always use in a suggestibility evaluation. Such as Gudjonsson, for example. But there might be others that I would include, depending on the interview and the initial results of the initial testing. And, then, I might add others as well.
MR. FREMGEN: So, would it be fair to state that, for instance, a person, um, uh -- if, after you interviewed the person, and they appeared to be of average or below average intelligence, you may not need to use tests that want to examine them for profound mental retardation?
ROBERT H. GORDON: Well, if they had average intelligence, I would -- I might confirm it with a -- I might have confirmed it with abbreviated IQ testing. If it was a person who was profoundly mentally retarded, they wouldn't have the capability of formulating attempt to commit a crime, and they would be in an institution, having their own personal daily needs taken care of. So, if --
MR. FREMGEN: So you're not going to have somebody who's profoundly mentally retarded, for instance, complete the evaluations or probably read at a significant level?
ROBERT H. GORDON: Well, they won't -- they won't even be charged with a crime.
MR. FREMGEN: Uh, just in, Doctor -- in regards to your evaluation, Doctor, you wouldn't provide those type of tests that don't fit -- appear to fit the personality of the individual you're examining?
ROBERT H. GORDON: True.
MR. FREMGEN: Okay. Can you briefly describe what tests you did conduct in regards to your evaluation of Brendan Dassey?
ROBERT H. GORDON: Yes. The one, uh -- do you want me to talk about the Gudjonsson Suggestibility Scale?
MR. FREMGEN: However you wish to start. Did -- did -- do you want to go chronologically with the tests that you performed?
ROBERT H. GORDON: I have a list of them right here. I'm going to go straight from the top to the bottom, if that's okay?
MR. FREMGEN: That's fine.
ROBERT H. GORDON: Uh, one is the Minnesota Multiphasic Personality Inventory, adolescent version. It's based on a der -- uh, derivation. It's -- it was altered and normed with thousands of subjects, uh, from the Minnesota Multiphasic Personality Inventory, which had originally came out in the 1930's by Starke and Hathaway, psychiatrists and psychologists, respectively, from the University of Minnesota.
It was subsequently revised as the MMPI-2, because they needed a more representative cross-section of individuals who, uh, represent the United States population, and they changed some, uh, given questions, and they re-normed it.
And, then, at the same time, uh, James Butcher, uh, who did -- was instrumental on that, as well as Robert Archer, two psychologists, uh, came up with the MMPI-A, which is the most widely used and researched objective test of adolescent emotional problems. It has many specific scales on it that one can review to form conclusions.
MR. FREMGEN: Why did you choose this test, for instance, in your evaluation of Brendan Dassey?
ROBERT H. GORDON: One is because it's so well-respected and well- researched. Secondly, it -- it comes -- it has scales on it that relate to suggestibility. Such as, uh, passivity, social avoidance, social alienation, uh, anxiety. Uh -- or, in contrast, those that aren't indicative of suggestibility, which would be the absence of those, but, instead, it would be a person that's assertive, or aggressive, or even that would -- those factors could be evaluated from the MMPI.
MR. FREMGEN: How many questions are involved in the -- in the MMPI?
ROBERT H. GORDON: I was supposed to look that up, wasn't I? I -- I believe 566 or 567.
MR. FREMGEN: And -- and how do you assess the answers?
ROBERT H. GORDON: But it might be -- I'm sorry to interrupt. It -- it might be shorter on the MMPI. I might be talking about the MMPI-2 with my prior answer.
MR. FREMGEN: Do -- do you recall how many questions you asked of Brendan when you performed the MMPI-A?
ROBERT H. GORDON: I administered the entire test. So, it was at least, uh, 450 questions long or more.
MR. KRATZ: Judge, I'll stipulate it's 478 questions.
ROBERT H. GORDON: Thank you, sir.
THE COURT: All right.
MR. FREMGEN: (By Attorney Fremgen) And how do you go about assessing the answers that the individual, for instance, in this case, Brendan, provided to you?
ROBERT H. GORDON: Well, I used the true/false questions and see which items, per scale, were scored in a given direction which would cause a scale, such as depression, or anxiety or social introversion, to be lower or higher. And then I put it on a graph.
I also used the validity scale scores to, um, ascertain whether the profile is valid. Whether it's accurate in terms of prescript -- in terms of describing a person's personality.
MR. FREMGEN: In regards to assessing the test, then, would you base your opinion on, let's say, any one answer of the 478 questions or a small number of answers?
ROBERT H. GORDON: Absolutely not.
MR. FREMGEN: Why not?
ROBERT H. GORDON: Well, the test is constructed so that one looks at scales, not at individual answers, because, taken out of context, a person's true or false answer to a given question could -- or provide, uh, confusing results, and it's just -- it's not proper protocol. It's not the way that -- that we're instructed to do that as psychologists, uh, to -- in order to render reliable conclusions.
MR. FREMGEN: I'm going to place on the screen Exhibit 229. In performing the MMPI, were you able to obtain results to the tests provided to Brendan?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what were those results?
ROBERT H. GORDON: Well, the results -- there are approx -- there are probably -- there are ten basic clinical scales, but there are probably 100 or 50 supplemental scales that can be interpreted. All were within the average range, including the validity scale, showing that the profile was valid.
All were in the average range except for four, and those were the ones that you see on that screen.
MR. FREMGEN: Can you, uh -- I believe you have a pointer.
ROBERT H. GORDON: I don't want to blind anybody here. Okay.
MR. FREMGEN: And, so I'm clear, you were able to assess Brendan on a number of topics and found him to be average in many of those -- those areas?
ROBERT H. GORDON: I assessed him on a number of scales, and all of them were in the -- within the average range except for four.
MR. FREMGEN: And -- and these are the four here?
ROBERT H. GORDON: Yes, sir.
MR. FREMGEN: Why were these four, in particular, um, important to note in regards to your evaluation of Brendan?
ROBERT H. GORDON: Well, I'll point out the one that was not hypochontri -- hypochondriasis. That's not particularly related to suggestibility.
MR. FREMGEN: Why did you include that on this --
ROBERT H. GORDON: I just wanted to be straight forward and honest and -- and say the scores that were high. I didn't want to leave any out.
MR. FREMGEN: What -- what is hypochondriasis?
ROBERT H. GORDON: It's, uh, either a person that has significant -- has a person's -- who has significant concern about bodily functioning, health, and, sometimes, it can be because they have bona fide, real health concerns. Cancer, migraine headaches, or whatever. Or it can be that they don't have physical symptoms, but they have a concern with their health anyway, or stress-related symptoms, and, then, that score would be elevated in those cases.
MR. FREMGEN: So even though this doesn't have any, uh, um, relevance to the issue of suggestibility, you included it, uh, because it was in the top four of the high scores?
ROBERT H. GORDON: I present information that is un -- that's abnormal.
MR. FREMGEN: Okay. Can -- can you then go through the other three? I'm going -- going to -- I don't want to put words in your mouth, Doctor, but were these the three that you felt were important in consideration of the suggestibility issue?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Okay. Can you, uh, go through your results, first with, I guess, the top?
ROBERT H. GORDON: The top one is social avoidance. The T-score was 72. It's easier to explain the percentile of one.
MR. FREMGEN: What -- first of all, if you can, can you describe what is per -- percentile and what is the significance of percentile?
ROBERT H. GORDON: I can. Out of 100 individuals who would have taken that test, 99 out of a hundred would have scored in a more normal range than did Brendan.
MR. FREMGEN: And, so, for instance, on the social avoidance, 99 would have scored at a more normal range? And of social avoidance or of being --
ROBERT H. GORDON: Social --
MR. FREMGEN: -- socially --
ROBERT H. GORDON: -- avoidance.
MR. FREMGEN: Okay. What is the significance in -- in regards to that in your assess -- assessment of suggestibility?
ROBERT H. GORDON: Individuals who have social problems, who are passive, who are withdrawn, have a greater likelihood of being suggestible.
MR. FREMGEN: What -- what's the next category that you looked at with the MMPI-A?
ROBERT H. GORDON: Well, I'd like to skip down, if I could, please, to social introversion. Uh, the reason being, that social introversion is a separate scale from social avoidance, and you rely on different questions that go into those scales from the MMPI-A, but they're still, basically, evaluating the same thing. Social withdrawal, social avoidance. And on that particular one, for social introversion, his percentile was 2.3.
In other words, uh, roughly, uh, 97 people -- 97 adolescents out of 100 would have scored in a norm -- more normal fashion. A lower fashion than he on that scale.
MR. FREMGEN: So he is more socially introverted than 97 others; is that correct?
ROBERT H. GORDON: Accor -- according to this scale, yes.
MR. FREMGEN: And, then, there was one other scale that you looked at?
ROBERT H. GORDON: Yes. And that's social alienation. And social alienation, his score was 1.5 percentile. Again, uh, 98 1/2, if we could call half -- 98 1/2 individuals would score on a more normal range on that scale than did Brendan.
Social alienation is different than the other two, because a person who is socially avoidant and socially introverted would tend to be socially alienated. They would be cut off from those with whom they interact and avoided by those with whom they interact, because they don't reach out, and they -- and so they're -- they're just alienated from -- from people who could be, otherwise, friends, or they -- they live, not psychotically, but they live in their own world, alienated from society, so to speak.
MR. FREMGEN: These scales, these terms, are these your terms or are these terms that you receive from the tests?
ROBERT H. GORDON: They're straight from the MMPI manual, and the, uh, from the manual and scales from the MMPI.
MR. FREMGEN: The test preparers?
ROBERT H. GORDON: The test preparers.
MR. FREMGEN: What -- what other tests did you, uh, administer for Brendan, or to Brendan?
ROBERT H. GORDON: Well, I think I'll -- I'm sorry. I think I'll skip the suggestibility scale and I'll skip down to the 16-PF. The 16-PF was developed 15 years ago at the University of Illinois by a psychologist by the name of Dr. Raymond Cattell.
He did what a -- what's known as factor analysis. He put down a number of normal questions that would -- that would measure normal traits of normal individuals, and then he did a statistical procedure to pull out similarities of those items. And he found 16 factors, um, and one global factor. So, one, the global factor, overall factors, the accommodation, independence.
The other two on the exhibit there, shy and deferential versus socially bold and dominant, are factors -- one of the -- two of the 16 factors contained on the instrument that measures normal personality traits.
MR. FREMGEN: How does this test assist you in, uh, developing an opinion or determining whether someone might be vulnerable to suggestion?
ROBERT H. GORDON: Review of research shows that individuals who are accommodating, that is, dependent, shy, differential, more passive, have a greater chance of being -- substan -- depending on the degree that it's shown, is substantially greater chance of being suggestible.
And that comes from research, and, also, uh, my training, and the books that I've reviewed, and the research I've done online, suggest the very use of this test showed this, and to review the outcome on these three particular scales.
MR. FREMGEN: What, uh, results did you obtain from this test in regards to Brendan?
ROBERT H. GORDON: Well, unfortunately, I don't have, and wasn't able to easily obtain, the percentile. So, all I can do is show to the jury that for accommodation, he's on the lower end of the scale. Not every one, but, still, the lower end of the scale on accommodation, the lower end of the scale on shy, and the over -- the lower end of the scale for being deferential, or passive, which are all consistent with each other and are consistent, by the way, with the MMPI results.
MR. FREMGEN: What other tests did you perform in regards to -- to Brendan?
ROBERT H. GORDON: I performed, also, the, uh, State Trait Expression, uh, beg your pardon. The State Trait Anger Expression Inventory, which is an objective test that measures normal and abnormal ways of expressing anger.
MR. FREMGEN: Why did you choose that test to conduct in regards to -- to this evaluation of Brendan?
ROBERT H. GORDON: Well, I wanted to see if he was angry. If a person is angry and dominant, then they tend to not be suggestible. If they -- if the score shows that they're passive, and deal with their anger by keeping it to themselves, or not really being angry very often, then that would, again, be related to -- to suggestibility.
MR. FREMGEN: What results, if any, did you determine in regards to this test as it applied to Brendan?
ROBERT H. GORDON: The test scores showed that he is passive and, uh, subdued.
MR. FREMGEN: Before I go to the next test, you -- let me go back to the 16-PF, and, I suppose, possibly, in regards to the State Trait Anger Expression Inventory -- um, you -- at the end of your -- as you were finishing test -- testifying as to the 16-PF, you said that it's also important to consider this test as a way to validate the MMPI to see if it's consistent; is that correct?
ROBERT H. GORDON: It's important to synthesize all of the different tests into one conclusion and consider all of them, yes.
MR. FREMGEN: So, let me ask you this, hypothetically; if, for instance, you had performed four tests, and three seemed to be consistent, but one seemed to be well away from what you've seen thus far, would that offer you some concern in the tests -- testing of the individual?
ROBERT H. GORDON: It would not -- it would cause me concern on how to most accurately synth -- put together those results into a -- an opinion.
MR. FREMGEN: So it had an impact on your final opinion?
ROBERT H. GORDON: It would. Absolutely.
MR. FREMGEN: Want to pull the mike a little closer?
ROBERT H. GORDON: Absolutely.
MR. FREMGEN: Sorry for interrupting you. Let's go -- we'll go to the next set of tests that you performed?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what was that?
ROBERT H. GORDON: Well, I performed two, uh, IQ tests. One is the Wechsler Abbreviated Scale of Intelligence. And it originally came from David Wechsler, uh, in 1932, at the -- in a Bellevue clinic, and it was called the Wechsler-Bellevue Intelligence Test established in 1939.
Um, since then, it's been revised and abbreviated as well. And the Wechsler Abbreviated Scale of Intelligence, uh, reliably assesses intellectual functioning, IQ, of adults and children.
MR. FREMGEN: Now, I have on the screen Exhibit 228. Does that indicate, uh, results of those two intelligence quotient tests?
ROBERT H. GORDON: I don't know if the jury can read it, so I -- I would need to read it, I believe, without blinding the court reporter.
MR. FREMGEN: How's that?
ROBERT H. GORDON: That's good. Now, to explain the top part, if you'd like me to --
MR. FREMGEN: Please.
ROBERT H. GORDON: It shows an average IQ is 100. That's why 50 people out of a hundred would score higher -- who obtain a score of higher of a hundred and 50 would score lower than a hundred.
Then, from 90 down to 70, or, actually, from 90 down to 84, is the low average range of intelligence. From 70 --
MR. KRATZ: Judge, if I may, on what scale is he referring to? That 90 to 84 is low average. If he's talking about Wechsler or Kaufman, I'd like him to -- to state that.
THE COURT: All right. Can you identify which of the -- the tests, uh, reflect those scores?
ROBERT H. GORDON: The Kaufman has an IQ score of 83, which is not a test that I described yet, but it's comparable to the Wechsler Abbreviated Scale of Intelligence.
MR. FREMGEN: (By Attorney Fremgen) Doctor, I'm sorry to interrupt you. I think the question by the prosecutor, the objection, was, is the base used to evaluate the actual results the same on the Wechsler and Kaufman? That is, is the base of what is average 100, what is below average, what you've said was 90 to 84, and probably the other numbers on the scale, the same scale used in completing a base for the purposes of interpreting the results in both the Kaufman and the Wechsler?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Okay. Now, if you could continue -- I'm sorry to interrupt you -- in regards to what the, uh, actual results were with Brendan and how they compare to the base -- base scale?
MR. KRATZ: Judge, if -- if I may just sharpen my -- my point, I wanted to make sure that this doctor was saying that, on the Wechsler Scale, 90 to 84 is considered below average. I think that's what he said. And I want to make sure that was, in fact, your testimony.
ROBERT H. GORDON: My testimony is, based on the diagnostic and statistical manual of mental disorders, which shows that individuals who have IQ's of 84 -- 70 to 84 -- is one facet of diagnosing a mental -- uh, borderline mental intelligence. On the other hand, according to Wechsler norms, a score of 70 to 80 is in the borderline range.
MR. KRATZ: If I may, then, Judge, I am going to object as -- as irrelevant. If he's saying the Wechsler Scale goes all the way down to 80 for low average, doesn't go to 84, and that's what this chart says, that would, uh -- would -- would be irrelevant. If he's using some other thing to score it with, like the DSM-4, which I now heard, uh, that's something other than this chart purports. And I would interpose an objection.
THE COURT: Mr. Fremgen?
MR. FREMGEN: Well, I can ask the doctor some more foundation questions as to the chart, itself, that he created.
THE COURT: I -- I think we're going to have to do that. And I'll rule -- I'll -- I'll withhold ruling on the objection.
MR. KRATZ: Thank you, Judge.
MR. FREMGEN: (By Attorney Fremgen) Doctor, you -- you provided this, um -- a chart that was used to make the Exhibit 228; correct?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And you included both the Wechsler and the Kaufman intelligence quotient on results and the tests on the one chart; correct?
ROBERT H. GORDON: Correct.
MR. FREMGEN: Why is it that they're both combined? Or why is it you felt necessary to combine both to one exhibit?
ROBERT H. GORDON: To make it simpler to understand, and be -- and I used the Wechsler -- I mean, I used the DSM-4, uh, norms, simply because that's what's commonly used, and if I would not use those, individuals would be asking me why I didn't use those, because in every mental status and psychiatric report under the, uh that comes out for clinical and forensic reasons, they ask precisely what a person's diagnosis is on the DSM-4.
MR. FREMGEN: Well, again, if we can set aside DSM-4 for just a moment --
ROBERT H. GORDON: I'm sorry.
MR. FREMGEN: specifically, regards to Wechsler and Kaufman, is there a base scale under the Kaufman Intelligence Test?
MR. FREMGEN: Is there a base scale from the Wechsler?
ROBERT H. GORDON: You mean base scale on how to divide it into categories?
MR. FREMGEN: Correct.
ROBERT H. GORDON: Uh, yes.
MR. FREMGEN: Okay. Under Kaufman?
MR. FREMGEN: Just on Wechsler?
ROBERT H. GORDON: Yes.
MR. FREMGEN: So -- so this scale, then, is actually the Wechsler?
ROBERT H. GORDON: This -- the scores are from the Wechsler and Kaufman.
MR. FREMGEN: No. I'm sorry, Doctor. The scale, not the score.
ROBERT H. GORDON: Oh, I'm sorry.
MR. FREMGEN: It's this document, here, where it says IQ percentile, is this actually the Wechsler?
MR. KRATZ: Renew my objection, Judge.
MR. FREMGEN: Is it --
THE COURT: I understand. Hold on a second here. This is going to get terribly confusing unless the witness can segregate, one, what's on this test. What -- what -- what -- or, excuse me. What's on the exhibit in the graphic portion of the exhibit? What that reflects. And, two, if that's different than -- than Wechsler test as it appears to --
MR. FREMGEN: I understand, Judge.
THE COURT: -- be, uh, that -- that he, then, explains that as well. Now, can he do that?
MR. FREMGEN: I'm going to ask the doctor that.
THE COURT: All right. Go ahead.
MR. FREMGEN: (By Attorney Fremgen) Doctor, can you distinguish the two? The Wechsler versus the Kaufman?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And without using the exhibit, Doctor, did you have -- come to any conclusions with regards to the evaluation of Brendan pertaining to the Wechsler Intelligence Test?
ROBERT H. GORDON: It's my conclusion that he is in the borderline range of intelligence.
MR. FREMGEN: What score did he -- do you recall what score he, um, you -- you calculated in regards to that test?
ROBERT H. GORDON: Which one again?
MR. FREMGEN: Kaufman?
ROBERT H. GORDON: Kaufman was 83.
MR. FREMGEN: And you indicated that's in the average or below average scale?
ROBERT H. GORDON: That's in the borderline range.
MR. FREMGEN: Borderline.
ROBERT H. GORDON: According to --
MR. FREMGEN: Can you describe what borderline means?
MR. KRATZ: Again, Judge, borderline from what scale? I -- I have to ask.
MR. FREMGEN: The question was in regards to Wechsler. And if the prosecutor would listen to the answer, he would have heard him say that scale.
MR. KRATZ: We'll -- we'll hear if it's the Wechsler Scale. Go ahead, Doctor.
ROBERT H. GORDON: I misspoke. According to the Wechsler Scale, it's in the low average range. The lower end of the low average range.
MR. FREMGEN: What significance does that have, being in the lower average range?
ROBERT H. GORDON: It means -- well, since he's in the lower end of the low average range, the significance means that he has problems as shown in his school records with, uh -- and his need for special education, his problems with, uh, learning, problems with concentration, problems with -- with functioning at an intellectual level that's -- that's in the average range.
MR. FREMGEN: What is the percentile? Is there -- or, should -- I.should ask you, is there a percentile associated with the score Brendan received on the Wechsler test?
ROBERT H. GORDON: There may be. I don't have it written down. I think it may have been on the chart that you took off the screen. I know it was there. I don't have that written down.
MR. FREMGEN: Do you have any, uh, notes with you as to those results?
ROBERT H. GORDON: No. Well, I may. I may.
MR. FREMGEN: Doctor, did you --
ROBERT H. GORDON: I -- I do.
MR. FREMGEN: Okay.
ROBERT H. GORDON: I do. And that's at the, uh, 10th percentile.
MR. FREMGEN: What significance does the percentile have? Or how -- how can you -- can you describe what that significance is in regards to, uh, evaluating the intelligence test results pertaining to Brendan?
ROBERT H. GORDON: On the Wechsler Abbreviated Scale -- Scale of Intelligence, 90 people out of a hundred -- 90 adolescents in -- in his own age group -- would have performed intellectually better than he.
MR. FREMGEN: Now, I'm going to ask you in regards to the Kaufman test.
ROBERT H. GORDON: Yes, sir.
MR. FREMGEN: And, again, these are both, for lack of a better term, an IQ test?
ROBERT H. GORDON: True.
MR. FREMGEN: In regards to the Kaufman test, what, uh, results did you, uh, formulate, uh, when you provided the test to Brendan?
ROBERT H. GORDON: He had a composite, an overall IQ compound score, overall IQ score, of 83, which is at the 13th percentile.
MR. FREMGEN: And, again, what significance does that percentile have in your, uh, evaluation of Brendan?
ROBERT H. GORDON: It shows that, uh, he has intellectual shortcomings to the point that 87 adolescents his age would have performed better on that test than he did.
MR. FREMGEN: Why perform two intelligence tests on Brendan?
ROBERT H. GORDON: I, uh -- this is an important case. I wanted to be thorough. I wanted to do it right.
MR. FREMGEN: Were the two results consistent?
ROBERT H. GORDON: Yes.
MR. FREMGEN: What I mean by that, I suppose, be more specific, consistent with each other?
ROBERT H. GORDON: True.
MR. FREMGEN: And, previously, you mentioned you were performing a number of tests in order to determine, for one, whether or not your results were consistent throughout the tests. Was this test results consistent with other observations you, um, uh, or the other observations from the other tests?
ROBERT H. GORDON: Not necessarily. Uh, I could say that a individual with lower IQ might be more likely to be more passive, more uninvolved. But, sometimes, individuals with lower IQ don't want to be embarrassed about their low IQ and act out, uh, and cause trouble so that they -- their low IQ isn't seen to others, and so they're not exposed. So I really can't say it's related.
MR. FREMGEN: So, now, you're not saying, then, that a person with low IQ is necessarily suggestible; correct?
ROBERT H. GORDON: Sometimes. Within extremely low IQ score, they -- that could be a very significant factor. Uh, but you're -- but, usually, uh, I -- a person would still administer an entire battery.
MR. FREMGEN: So one test, in and of itself, wouldn't be enough for you to make an opinion on whether a person is vulnerable to suggestion?
ROBERT H. GORDON: It wouldn't be enough for me. And I don't think it would be enough for the majority of forensic psychologists who are experienced in assisting the court and juries.
MR. FREMGEN: Would the IQ test, in and of itself, be enough for you in making that determination?
ROBERT H. GORDON: In this case?
MR. FREMGEN: Yes.
MR. FREMGEN: Did you perform any other tests in relation to your evaluation of Brendan Dassey?
ROBERT H. GORDON: Yes, I did.
MR. FREMGEN: And what test was that?
ROBERT H. GORDON: That was the Gudjonsson Suggestibility Scales. The reason it's plural is there are two scales -- two
scales that haven't been normed to the degree that they're helpful in this particular kind of hearing.
Two have been normed to the point where they're alternate forms. So you could give one form to a person one week, and another form to a person another week, and -- and they -- they're just alternate forms and we'll get the same results.
MR. FREMGEN: Can you briefly describe this test?
ROBERT H. GORDON: Yes. It was constructed, like I said, uh, by Gisli Gudjonsson in the early 80's to deal with interrogative suggestibility. Uh, rather than define that, which is a lot of words, and I don't think it would be that helpful, I -- I would just say that there are two aspects of interrogative suggestibility. Uh, suggestibility when a person is being interrogated. And that's what it assesses.
And there are two aspects. One is yield and one is shift.
MR. FREMGEN: Could you describe, or define, what is "yield" in the Gudjonsson Suggestible Scale?
ROBERT H. GORDON: Yield is when a person answers in a -- provides a response to a leading question. Even respond -- provides a response to a leading question which is not facts that have been presented to them. They haven't -- they don't know about that. Or they're -- it's an incorrect statement.
MR. FREMGEN: What is "shift" under the Gudjonsson -- Gudjonsson Suggestibility Scale?
ROBERT H. GORDON: Well, shift -- the -- the individual is -- is read a -- is presented as a memory test, and they're read a crime scene. And, then, they're asked to repeat it.
Then, later on, it could be immediately or later on, up to half hour, 45 minutes, you ask the questions again. Or you ask questions based on that -- on the story. And you see whether they answer in a, yes, fashion to leading questions.
Then, after that is done, then you exert mild pressure, or mild criticism to them by saying -- I could pull out the exact --
MR. FREMGEN: No, that's okay. If you can just recall from your memory?
ROBERT H. GORDON: But it's something to the point where, um, subject, uh, you have, uh, made a number of errors. I know you can do better. I need you to think about this more carefully. And I'm going to ask you the same questions and I want you to do better this time.
And, then, the shift is the degree to -- the number of times that a person changes their answer from the first question -- time they're questioned to the second time they're questioned with the very same questions.
MR. FREMGEN: Now, I have on the screen, Exhibit 230. Is this the results that you received when you performed the Gudjonsson Suggestibility Scale on Brendan?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And if you could just -- you've already defined shift and yield. If you could indicate the significance of the other three, um, categories; "score", "percentile", and "average"?
ROBERT H. GORDON: Sure. On the yield, which should be at the -- it's the first set of 25 questions that are asked. Five questions are related. They're just neutral questions. So they're -- on the -- but on the yield, 15 questions are yield questions. And he answered in a yielding fashion, in terms of leading questions, 7 times.
On the shift, he changed his answers 9 times out of 20 potential questions.
And, then, the average individual taking the test would shift -- would yield to leading questions 4 times out of 15, and 2 times they would change their answers when they were read the questions again, 2 times out of 20 of the questions that are designed to measure that.
Uh, so the difference here is 2 and 9 and 4 and 7, resulting in a percentile score that individuals taking that test, only three out of 100 would shift their answers more than Brendan did. And only 20 out of 100 would yield their questions. To give in and go along with leading questions more than Brendan.
So, he had a greater tendency to shift his answers due to pressure than he did, simply, answer them when there were leading questions without pressure.
The way you get the total score, is you add up the shift and the yield to get a total score of 16. And, so, the average person would get a score of 7, and the percentile for the total of these two, for the total score, would be 95. Five people out of one hundred would obtain more yielding and shifting responses than did he. Ninety-five would not.
MR. FREMGEN: Was this the last test that you performed or conducted on Brendan in regards to your evaluation as to whether he was vulnerable to suggestion?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And, based upon these results and the mental status, uh, examination, as well as other collateral information, were you able to reach, uh, an opinion as to whether or not Brendan is, uh, a person who is vulnerable to suggestion?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Is that opinion to a reasonable degree of psychological certainty?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what is that opinion you have?
ROBERT H. GORDON: It's my opinion that -- that he's highly suggestible, uh, when being interrogated, in responding to leading questions or pressure, mild pressure, if that, in fact, is present.
MR. FREMGEN: Is that based -- your opinion based solely on the Gudjonsson Suggestibility Scale or a combination of the other tests, the series of tests, that you performed on Brendan?
ROBERT H. GORDON: It's based on my knowledge of the research, based on the -- the, uh, collateral data that we've talked about. It's based on all of the personality tests that I used, and IQ tests that I used, and it's also based on the Gudjonsson Scale.
MR. FREMGEN: Would it be -- as a forensic psychologist, would it be appropriate to consider just one test that was performed in isolation from the others?
ROBERT H. GORDON: It would not be recommended practice. Even if a person had a substantially low IQ. Like I said at the very beginning of my testimony, this is -- these are important matters that I testify before, and forensic psychologists testify about, and -- and to not do a thorough job and not to do anything less than that wouldn't be -- wouldn't be right, both ethically and by my own standards.
MR. FREMGEN: You had indicated before that you've, uh, performed similar evaluations on approximately five -- in approximately five other instances?
ROBERT H. GORDON: At least that, yes.
MR. FREMGEN: Did you perform the exact same tests in each circumstance?
MR. FREMGEN: So some of the tests performed on Brendan you may have not -- you may not have used on others?
ROBERT H. GORDON: Either because I did not possess them or because I acquired further information from seminars and -- and from my review of the literature that indicated that other tests might be more helpful to use as well.
MR. FREMGEN: Is the Gudjon -- Gudjonsson Suggestibility Scale consistent within your evaluations?
ROBERT H. GORDON: I did not use it on one -- at least one that I can think of. I -- I didn't have it at that point. It -- it was difficult to obtain. You ord -- you have to order it through New York and submit your credentials, via internet, to the -- to London, and it's -- it's a unwielding process. But, finally, I did succeed. It took me about a year to get the test once I decided I wanted it. It should be made much -- I shouldn't give an editorial.
MR. FREMGEN: In reaching your conclusion, your opinion, were there any other factors that you considered, um, more probative than other factors in assessing Brendan's vulnerability to suggestion?
MR. FREMGEN: What --
ROBERT H. GORDON: Not in this case.
MR. FREMGEN: Let me clarify your answer as -- would it be consistent, then, that you consider all factors probative?
ROBERT H. GORDON: Uh, yes. And I -- I wouldn't be able to assign a percentage.
MR. FREMGEN: Do you recall what factors that you considered when you, uh, um, reached your conclusion as to Brendan's, uh level of vulnerability to suggestion?
ROBERT H. GORDON: I considered all that I testified to, plus it -- the way in which the police asked -- the detective asked the questions, and, uh that's pretty much it.
MR. FREMGEN: Now --
ROBERT H. GORDON: The length of time he was in custody. The -- the soft room that he was in that made him more relaxed and comfortable to talk. Uh --
MR. FREMGEN: Let me ask you this: Are those factors that, in the research by Gudjonsson, is something to consider when assessing a person's, uh, vulnerability to suggestion?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And you touched upon a few. In fact, when I asked you to elaborate, you touched upon what I believe Gudjonsson refers to as circumstances of custody. Do you recall that? Touched upon duration and --
ROBERT H. GORDON: Sure.
MR. FREMGEN: Why did -- well, what significance does duration of custody have in assessing an individual's, uh, uh, level of susceptibility to suggestion?
ROBERT H. GORDON: The longer they're in custody, the more anxious they probably become, the more fatigued they become, and the more susceptible they become to offering a confession, whether it be false or true. Just to offering a confession when they otherwise might not have.
MR. FREMGEN: Are you familiar with the length of custody in regards to Brendan in -- in -- in regards to the statement made on May -- March 1, 2006?
MR. KRATZ: Judge, if I may interpose an objection. I think "custody" is a legal term. If that could be expressed in some other way, I'd appreciate that.
THE COURT: Well --
MR. FREMGEN: That's fine. I'll rephrase -- I'll rephrase. That's fine, Judge.
MR. FREMGEN: (By Attorney Fremgen) The duration of the interview process, would that -- you understand what I'm asking you, Doctor?
ROBERT H. GORDON: Yes.
MR. FREMGEN: How long he was there with the officers?
ROBERT H. GORDON: I believe it was in the neighborhood of four hours on at least one occasion.
MR. FREMGEN: But, approximately, you believe it was around four hours?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Does the length of the police presence, and that I -- I shall try to define better. The length of time that the individual is with the police, is that a factor under Gudjonsson's research to consider in assessing a person's level of suggestibility?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And are you familiar with how long the police had been involved with Brendan prior to making the March 1, 2006, statement?
ROBERT H. GORDON: I don't know for sure, but I think it was at least several days. That I don't have committed to memory.
MR. FREMGEN: Again, in regards to the Gudjonsson research, what other factors does the Gudjonsson, um, suggest to, for lack of a better term, that re -- that forensic psychologists or person's performing evaluations consider as a factor in pertaining to their opinions about suggestibility?
ROBERT H. GORDON: Uh, sleep deprivation, um --
MR. FREMGEN: Well, let's go through each one. Was that a consideration in this case?
MR. FREMGEN: Okay.
ROBERT H. GORDON: Another is the way in which the interrogation was conducted.
MR. FREMGEN: Is that something that you considered, again, in reaching your conclusions in this case?
ROBERT H. GORDON: Yes. I reviewed the, uh, written data, as well as reviewed the, uh, CDs.
MR. FREMGEN: And -- and in that regard, are you referring, specifically, to this issue of yield and shift from the scale?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And I'll get back to that. What other, uh, factors does Gudjonsson -- Gudjonsson recommend using by the evaluator?
ROBERT H. GORDON: Well, considering whether promises were made, whether a person was told of -- that the case was an absolute certainty that they would be found guilty. Whether they were told that there were other in -- there was other information that showed their guilt when it did not -- was not present. When they appealed to different themes of -- such as, uh, we know you really didn't -- minimizing the serious, we know you really didn't mean to do this, or we know you're -- you're -- weren't really an active participant, or we know you wouldn't have done this. Now, if you had it to do over again, or your family will be spared a lot.
Uh, there are all kinds of different themes that can be developed by an interrogator to increase the likelihood of that occurring. And, then, as the person generally weakens and -- and get -- and becomes fatigued, there's a greater chance that they will then give a statement.
The likelihood of retraction is very great in cases like this when this is a confession. That's why, uh, it's important to consider whether a written statement was derived from it. Um --
MR. FREMGEN: Let -- let me get back to -- I'll -- I'll -- I'll have some specific questions for you. But let me get back to -- you were talking about techniques or interrogation style. Um, now, again, I -- if I recall correctly, this has something to do with yield and shift; correct?
ROBERT H. GORDON: That's true.
MR. FREMGEN: Now, did you note any of those specific, uh, if you recall, if I might summarize it, as being, you said, leading questions, for instance, and praising or -- or, um, uh, feelings types of questions?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Okay. Let me ask you, again, you reviewed the March 1, 2007 -- or, sorry, 2006 statement; correct?
ROBERT H. GORDON: Correct.
MR. FREMGEN: I'm going to show you what has been marked as 216. Do you recall also receiving that transcript of the March 1, 2006, video state -- statement?
ROBERT H. GORDON: Yes.
MR. FREMGEN: As an example, I'd like you to turn to page 615?
ROBERT H. GORDON: I am -- I found the page.
MR. FREMGEN: Three down. I guess it would be three names down. I think it starts, "Fassbender." That's a large paragraph.
ROBERT H. GORDON: I see that.
MR. FREMGEN: If you could, uh, begin reading from, "again --
MR. KRATZ: Judge, I'm going to -- excuse me. I'd like to interpose an objection. Uh, and if we could approach or if I could be heard outside the presence of the jury, I'd appreciate it. We can probably do it by approaching.
THE COURT: All right. Approach.
(Discussion off the record)
MR. FREMGEN: (By Attorney Fremgen) I'm sorry. Doctor, do you have before you, now, that same transcript?
ROBERT H. GORDON: I do.
MR. FREMGEN: Okay. You're at page 615?
ROBERT H. GORDON: I am.
MR. FREMGEN: And starting with, um, that same line where it's, "Fassbender," begins, "again," or -- could you read -- and it's a long paragraph. I'm not going to ask you to read the whole paragraph, but if you can read through to, I believe it's the fourth sentence, where it starts, "I just don't see that." If you can read that, please? I'm sorry, read it out loud if you could?
ROBERT H. GORDON: I -- I had to find out where I was supposed to stop.
MR. FREMGEN: Okay.
ROBERT H. GORDON: Sorry.
MR. FREMGEN: That's fine.
ROBERT H. GORDON: (As read) "Again, er, whether Blaine saw it or not, the time periods aren't adding up. They're not equaling out. We know whether -- we know when Teresa got there."
In parenthesis, "Brendan nods yes." End parenthesis. "Um, and, I know -- I guarantee ya, Teren -- Teresa's not standing on a porch when you come home from school."
MR. FREMGEN: Okay. Then, if you could skip down to where it says, "Brendan" right after that paragraph? And what is his -- what is the response?
ROBERT H. GORDON: "I got off the bus. I walked down the road, and when I got to that thing, uh, the other house, I just sit in there for nothing. I can see her jeep in the garage just sitting there, and I didn't see Steven and her on the porch."
MR. FREMGEN: The next line that starts with "Wiegert?"
ROBERT H. GORDON: "You -- you did or you didn't?"
MR. FREMGEN: And then "Brendan?"
ROBERT H. GORDON: "I didn't."
MR. FREMGEN: Okay. Is this an example, for instance, of the -- the two -- one of the two phenomenons, yield or shift?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what is it?
ROBERT H. GORDON: It's a phenomenon -- uh, I -- I -- it may be leading in terms of -- it -- it's likely both. And --
MR. FREMGEN: I'm -- I'm sorry. You said likely both?
ROBERT H. GORDON: Both.
MR. FREMGEN: It -- it's -- and is that possible when you're doing, uh, an evaluation under Gudjonsson, that you might have something that is a kind of a hybrid of both?
ROBERT H. GORDON: On the high -- on the Gudjonsson, it -- the -- only measures leading to keep it pure and shift. Uh, it doesn't have the two combined. But in real life, oftentimes questions contain both. There's mild pressure, as well, of some sort, or mild attempts to have a shift along with com -- combination with a leading question with a --
MR. FREMGEN: And in this example, was Brendan's answer a shift?
ROBERT H. GORDON: It was both.
MR. FREMGEN: A response to leading -- to yield and to shift?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Back on 615, Doctor, the same paragraph, that large paragraph, where it begins "Fassbender?"
ROBERT H. GORDON: Yes.
MR. FREMGEN: Near the very end of that paragraph, it -- it begins, "I can tell you, we don't believe." Can you read that line?
ROBERT H. GORDON: (As read) "I can tell you, we don't believe you because there's some things that are wrong, but you got to tell the truth."
MR. FREMGEN: And, again, is that that factor you were discussing in consideration of yield and shift?
ROBERT H. GORDON: That's in consideration of a shift.
MR. FREMGEN: That's the interrogation factor that you were talking about?
ROBERT H. GORDON: True.
MR. FREMGEN: Let me ask you if you could skip to page 587?
ROBERT H. GORDON: I'm there.
MR. FREMGEN: And if you could go eight lines down? Starts with -- the person speaking is -- it says, "Wiegert?"
ROBERT H. GORDON: Yes.
MR. FREMGEN: If you could read from there until I ask you to stop?
ROBERT H. GORDON: How many lines down?
MR. FREMGEN: Uh, eight. Starts with, "Wiegert." It starts, "So Steve stabs."
ROBERT H. GORDON: Okay. (As read) "So Steve -- Steve stabs her first and then you cut her neck."
"Brendan" -- in parenthesis, "Brendan nods, uh, yes." End parenthesis.
"What else happens to her in her head?"
"Fassbender: It's extremely, extremely important you tell us this for us to believe you."
"Wiegert: Come on, Brendan, what else?"
"Pause."
"Fassbender: We know. We just know. You need to tell us."
MR. FREMGEN: I'm sorry. Could you read that line again?
ROBERT H. GORDON: "We know. We just need you to tell us."
"Brendan: That's all I can remember."
"Wiegert: "All right. I'm just going to come out and ask you, who shot her in the head?"
"Brendan: He did."
"Fassbender --
MR. FREMGEN: That's -- that's fine, Doctor, right there.
ROBERT H. GORDON: I'm sorry.
MR. FREMGEN: And -- and -- and, again, at that point, is -- Uh, my question is, essentially, the same as before. Is this an example of the yield or shift that you were describing previously in the Gudjonsson Suggestibility Scale?
ROBERT H. GORDON: Shift.
MR. FREMGEN: And -- and why is it shift?
ROBERT H. GORDON: Because there's pressure to give a statement rather than merely elicit information.
MR. FREMGEN: And I'm going to ask just one last example. If you could skip to page 574?
ROBERT H. GORDON: Yes, sir.
MR. FREMGEN: If you, uh, go seven lines down. Again, it starts with Officer Wiegert. And it says, "We know what happened." Start with that line?
ROBERT H. GORDON: (As read) "Wiegert: We know what hap -- we know happened."
"Fassbender: It's hard to be truthful."
"Wiegert: We know what happened. It's okay. What did you do?"
"Brendan: I didn't do nothing."
"Brendan. Brendan. Brendan, come on, what did you do?"
That's what it says.
MR. FREMGEN: If you can go a little further?
ROBERT H. GORDON: (As read) "Fassbender: What does Steven make you do?"
"Wiegert: It's not your fault. He makes you do it."
"Brendan: He told me to do her."
MR. FREMGEN: And at that point, again, are -- is this, again, an example of these lines, uh, the officers' questions, and the responses, example of the technique you were referring to in how one shifts their answers or yields?
ROBERT H. GORDON: It's an example of using a theme of minimizing, uh, responsibility or culpability or seriousness of a crime, and being sympathetic in an attempt to have a person answer leading questions.
MR. FREMGEN: Okay. And that's the yield that you're describing on Gudjonsson?
ROBERT H. GORDON: Yes.
MR. FREMGEN: I won't go through any further examples, but would it be fair to state that you did review both transcripts, as well as the tape and observed other examples?
ROBERT H. GORDON: I certainly did.
MR. FREMGEN: I -- what I want to go back to is, uh, some additional factors that you considered in regards to, uh, your evaluation. Did you consider character of the defendant? His age, for instance?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what significance does his age have on your opinion that he is, uh, um, susceptible to suggestion?
ROBERT H. GORDON: Individuals, who are minors, have a greater likelihood of being susceptible, especially, even when they're older minors, i.e., or, that is 15 or 16, uh, they have a much higher likelihood of being susceptibil -- susceptible, especially when they're -- when that's coupled with low intellectual functioning.
MR. FREMGEN: Does a lack of life experiences or maturity level also impact?
ROBERT H. GORDON: It's --
MR. FREMGEN: On that decision?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Were you able to -- well, do you have any opinion in regards to Brendan, as far as lack of life experiences or maturity level?
ROBERT H. GORDON: His life experiences are limited because of his social withdrawal and social alienation, and his living within -- within himself and within a -- mostly relating to his family, not friends.
MR. FREMGEN: Does one's familiarity with the police, is that a factor to consider based on the research of -- in the Gudjonsson, um, research in formulating an opinion on one's susceptibility to suggestion?
ROBERT H. GORDON: Based on Gudjonsson research and others, yes, that's true.
MR. FREMGEN: And was that a consideration with you when you spoke to -- when you rate -- uh, reached your conclusions about Brendan?
ROBERT H. GORDON: Yes.
MR. FREMGEN: How so?
ROBERT H. GORDON: Individuals, who have minimal or no contact -- with no criminal history, have a greater chance of -- or a greater susceptibility to being suggestible.
MR. FREMGEN: Does anxiety -- is that a factor to consider, uh, in the research or in the Gudjonsson research when reaching your conclusions as to susceptibility to suggestion?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And was that a factor in this case when you met with Brendan?
ROBERT H. GORDON: Yes, because both state anxiety, anxiety at the time of an incident, of an interview, as well as trait anxiety, whether a person has a trait of being anxious, in general, during their life, is correlated with increased suggestibility as well.
MR. FREMGEN: In regards to, uh, learning disabilities, is that a factor that you would consider in reaching your conclusion?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And was that a factor in this case?
ROBERT H. GORDON: Brendan told me that it was a factor during the interview, and I, subsequently, had an opportunity to review about two inches, uh, worth of, uh -- two inches of collateral data from the school system showing that he had been having substantial learning problems, and special programming, and individual education programs throughout his education.
Or, I should restate. At least that -- back to fourth grade. Maybe earlier. And it was pointed out to me.
MR. FREMGEN: But -- but you only had the material back to fourth grade?
ROBERT H. GORDON: I believe so.
MR. FREMGEN: Um, would you consider any one of these characteristics, or traits, individual? Away from the -- I guess the context of it in its totality when making your determination whether one is susceptible to suggestion?
MR. FREMGEN: Why not?
ROBERT H. GORDON: It's essential to do a comprehensive evaluation to get the most accurate -- have the most accurate, valid conclusions to let this jury know what the status is of Brendan's suggestibility, or lack thereof. And to do that, I administered a variety of tests, as do other forensic psychologists, who do this type of work, to provide that information.
MR. FREMGEN: When you reached your conclusion that you've previously stated, did you consider all of these factors?
ROBERT H. GORDON: I should answer out loud. Absolutely.
MR. FREMGEN: Is the factor -- is another factor to consider, memory or memory deficits?
ROBERT H. GORDON: It is.
MR. FREMGEN: Now, in that regard, did you actually perform any tests on Brendan to assess his memory?
MR. FREMGEN: Did you review any collateral information that might, uh, have, uh, assisted you in determining what level of -- or what type of memory he has?
ROBERT H. GORDON: Yes.
MR. FREMGEN: And what were those records?
ROBERT H. GORDON: Records were --
MR. KRATZ: Judge, excuse me.
ROBERT H. GORDON: school records.
MR. KRATZ: I'm going to ask that that question be phrased before or after he's rendered his opinion in this case.
MR. FREMGEN: That's fine.
MR. KRATZ: In other words, when they were -- when they were reviewed and -- and were they included in his opinion.
THE COURT: Go ahead. Rephrase it.
MR. FREMGEN: That's fine.
MR. FREMGEN: (By Attorney Fremgen) And my question is, did you review any records that reflected upon Brendan's memory? Whether he has a deficit or not? And was -- did you review those before or after you performed your original evaluation of Brendan?
ROBERT H. GORDON: That's two questions. I, uh reviewed documents regarding memory, but those documents were from the school, and they occurred after the time that I wrote a report summarizing my findings.
MR. FREMGEN: Did it impact -- did those additional records impact on your opinion?
ROBERT H. GORDON: They reinforced, uh, and were consistent with my opinion.
MR. FREMGEN: In regard to your opinion, in case I may have forgotten to ask, are all of your opinions today, in regards to Brendan, within a reasonable degree of psychological certainty?
ROBERT H. GORDON: Yes.
MR. FREMGEN: Judge, I have nothing else.
THE COURT: Uh, we'll break until 10:35.
MR. KRATZ: That's fine.
THE COURT: Presumably you have some cross-examination questions?
MR. KRATZ: I certainly do, Judge.
(Recess had at 10:15 a.m.)
(Reconvened at 10:38 a.m.)
THE COURT: Mr. Kratz.
MR. KRATZ: Thank you, Judge.